Fine, I'll Write About the Trump Indictment

Two dumb Washington Post op-eds. A discussion of the "Comey standard." Identifying a common fallacy used by partisan Republicans. And burying the lie of the Courageous and Noble Nixon pardon.

Above: aren’t you sick of this guy yet?

The last thing I want to write about is Donald Trump. I could write about other things, you know. I have other interests.

I have a post halfway written about the phenomenon of bastardizing works of art to make puerile points about race relations in this country. I have been working on the in-depth analysis I promised you of cases about the Independent State Legislature doctrine—a post that I have put on the back burner because that case is likely to be dismissed as improvidently granted.

But all you want to hear about is the Donald Trump indictment. Isn’t it?

Crosses arms and frowns.

FINE.

But I’m going to write about it my way. I don’t want to say the same things fifty other lawyers and pundits are saying. So I’m going to talk about the aspects that interest me. I’m going to bring some Hayek into the mix. I’m going to talk about the argument that there is a double standard at work here—and explain that, in fact, the critics of the indictment are the ones applying a double standard. I’m going to trash a silly op-ed I saw in the Washington Post telling us why the indictment is supposedly such a bad idea. And, in a section for paid subscribers, I’m going to talk about equal justice, another stupid Washington Post op-ed, and why the Richard Nixon pardon was actually bad, despite what the conventional wisdom says. (And why pardoning Donald Trump would be even worse.)

And then, in a few days, I’m going to send you the post about art and race relations that I’ve wanted to finish writing for days. Because that’s really more interesting than the boob Donald Trump.

Why Do You Want to Read About the Donald Trump Indictment, and Why Should I Want to Write About It?

Before I write about this, I want to complain about writing about it. First, aren’t we all sick and goshdarned tired of this man? Sam Harris’s latest podcast contains a soliloquy in which he imagines that the entire world had spent the better part of a decade obsessing over the antics of, say, Carrot Top (whose movies should be called “Box Office Poison”).

Shouldn’t we feel guilty about wasting our valuable time on someone who is, objectively speaking, someone who ought to be considered totally inconsequential? Someone who is the political equivalent of Vanilla Ice?

Trump is tawdry and cheap and stupid. It is a travesty that we spend so much energy, and so much of our limited time on this planet, talking about him. But there is a reason we do—and I could, and likely will some day, write an entire newsletter about that. It is because voters vote for him. They are the ones who are to blame.

And so, because so many people vote for him, it’s worth talking about his indictment.

Before I talk about the Hillary double standard arguments, I’m going to start with an attack on a really stupid Washington Post op-ed, because my response to it will help you understand why the Trump indictment is, in fact, so strong.

The Incredibly Dumb Washington Post Op-Ed Opposing the Indictment

The dumb op-ed of which I speak can be read here. Take Dramamine before clicking, because the intense partisanship and dishonesty will make you retch otherwise. The piece is by some hack named Gary Abernathy, and is titled “Indicting an ex-president and leading candidate requires more than this.”

I want to make three main points about this op-ed. Before I do, let me frame the argument: I believe that if you had a TV writer sit around in a writer’s room and dream up the most extreme possible example of mishandling of documents short of selling secrets to our enemies, he would come up with something like what the indictment describes . . . and then his colleagues would say to him: dude, that scenario is a little over the top

The Seriousness of the Documents Trump Stole

First, the hack writing for the Washington Post implies that this indictment is really just all about that terrible overclassification crisis you’ve heard all about:

Other charges amount to various ways of saying he withheld or concealed — or schemed to conceal — documents or records. These are just creative ways to charge Trump with numerous crimes over one central action. In a country where many experts agree that too many documents are classified in the first place, bringing felony charges against a former president for possessing some is overkill.

I agree with the “many experts” that overclassification is a problem! In fact, I have written about this topic many times over the years. As I explained in a 2020 post on my blog about the fight over potentially classified information in John Bolton’s book:

In 2007, I described the book Irreparable Harm by Frank Snepp as one of five books that changed my life, because it “made me understand that sometimes government agents sometimes classify information just to keep themselves from being embarrassed.” The book describes Snepp’s legal fight over his book Decent Interval, which was a scathing indictment of the CIA’s missteps in Vietnam, particularly our abandonment of our allies in country after the Saigon airlift. Snepp fought a losing battle that went all the way to the Supreme Court over the government’s ability to withhold information they claimed was classified but was really done so to prevent embarrassment. (Some people of a particularly authoritarian bent believe that avoiding embarrassment to the government is actually a legitimate interest that justifies classification. Many of these people are involved in classification decisions. Josef Stalin could not have agreed more.) Snepp lost, and the government was able to seize profits from Decent Interval and subject Snepp’s future books to prepublication review.

So yeah: overclassification is a thing. And I can imagine a situation in which charging people with possessing overclassified documents could be “overkill.”

But is it really overkill if the secrets that Trump stole from the government are some of the most sensitive secrets our government possesses? Let’s look at how Jack Smith describes what was found among the papers Trump had stacked on the Mar-a-Lago ballroom stage or piled up in a bathroom:

Again, the guy in the writer’s room could not come up with a more sensitive set of documents if he tried.

Is Charging Obstruction Always the Last Resort of the Prosecutor Who Can’t Prove the Underlying Crime?

Next in Abernathy’s dishonest screed is the implication that Smith is charging Trump with obstruction because he can’t manage to prove the underlying crime:

Finally, there’s that reliable charge of last resort: “obstruction.” Prosecutors far and wide learn early on that if you can’t nail them on the crime, nail them on trying to obstruct the investigation of the crime.

First: it’s not that simple; this is a simplistic and partisan outsiders’ view of how prosecutors operate. But more important, even if Abernathy’s silly and inaccurate claim were true, that claim would have nothing to do with this case, because Smith does think he can “nail” Trump on the underlying crime, which is why he charged it.

First, let’s discuss why charging obstruction is not as simple a concept as Abernathy pretends. Take, for example, Robert Mueller’s report, which concluded that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference”—yet Mueller investigated and discussed in his report the issue of Trump’s multiple acts of obstruction of an investigation of that very alleged interference. Does this bear out Abernathy’s thesis? Well, did Mueller say: “I can’t nail Trump on the underlying crime, but I’m gonna nail him on trying to obstruct the investigation of that crime”? No, he did not. Instead, he provided a thoughtful legal analysis that, while noting that proof of the underlying crime “is not an element of an obstruction offense,” nevertheless also observed that “many obstruction cases involve the attempted or actual cover-up of an underlying crime” and that “[p]ersonal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose.” Mueller noted that the absence of proof of an underlying crime was one of several factors that made this particular obstruction case “atypical compared to the heartland obstruction-of-justice prosecutions brought by the Department of Justice.” (See all of this at page 156 of the linked Mueller report.)

Not quite as simple as Abernathy’s “if you can’t nail ‘em on the underlying case, get ‘em on obstruction!” principle that he says “[p]rosecutors far and wide” are taught, is it?

But more important than this is the fact that the alleged “nail ‘em with obstruction if you can’t get ‘em for the real crime” principle articulated by Abernathy has nothing to do with this indictment anyway, because Smith has indeed charged all of the underlying crimes that Trump obstructed.

Now’s as good a time as any to take a look at the indictment itself, if you dare. Counts 1-31 are Willful Retention of National Defense Information in violation of 18 U.S.C. § 793(e). These are simply charges that Trump willfully retained “documents relating to the national defense” without authorization. (These, by the way, are the charges from the “Espionage Act” that the partisans criticize as invalid because, they claim, “espionage” is in the title of the act, and Trump was not engaged in “espionage”! Giving primacy to the title of an act over its language is, I need hardly explain, not how any of this works. As Charles C.W. Cooke noted in an episode of National Review’s “Editors” podcast, if reading the title of a bill is a reliable method for ascertaining its contents and legal effect, then Lindsey Graham should have voted for the “Inflation Reduction Act.”)

Count 32 charges conspiracy to obstruct justice, charging that Trump and his valet conspired “to engage in misleading conduct toward another person and corruptly persuade another person to withhold a record, document, and other object from an official proceeding, in violation of 18 U.S.C. § 1512(b)(2)(A), and to corruptly conceal a record, document, and other object from an official proceeding, in violation of 18 U.S.C. § 1512(c)(1).” This is your obstruction charge. So, under Abernathy’s logic, I guess Jack Smith thought he couldn’t “nail” Trump for violations of 18 U.S.C. § 1512(b)(2)(A) or 18 U.S.C. § 1512(c)(1), right?

Well . . . guess what counts 33 and 34 are? Um, that would be charges for those very same “underlying crimes”—the crimes of violating 18 U.S.C. § 1512(b)(2)(A) (in count 33) and 18 U.S.C. § 1512(c)(1) (in count 34).

So Gary Abernathy is totally full of it when he implies Smith charged Trump with obstruction because he couldn’t “nail” Trump on the underlying charges. He charged Trump with those crimes and the proof is strong.

Basically, under Abernathy’s analysis, you should never charge those who obstruct with obstruction. How does such dreck get published?

Abernathy Would Apparently Never Ever Charge Anyone with Willfully Mishandling National Defense Information, Unless They Were Selling It or Colluding with Our Enemies

The third point I want to make about Abernathy’s ridiculous piece is to mock his conclusion that it’s A-OK for anyone to just take classified documents pertaining to our most sensitive secrets, and to show them to anyone he likes, as long as that person is not an enemy and is not charged money for the privilege:

Let’s be clear: There’s no good excuse for Trump holding onto classified documents, especially after the government demanded their return. But it’s not in Trump’s psyche to do what’s logical or easy. We know this. He takes every confrontation as a personal challenge. It’s what some people love about him, and what has so exhausted the rest of us.

But let’s also be clear about this: Bringing charges related to the possession of classified documents against a current or former president for anything short of colluding with our enemies or selling them on the black market is unnecessary, unwise and destructive to democracy. It will exacerbate our political polarization and dominate the daily news cycle much like the Russian collusion hysteria of Trump’s first two years in office. No one can be looking forward to that.

Let’s also be very, very “clear about this”: Gary Abernathy here apparently argues that a former president may, without criminal consequence, steal any top secret information about anything he likes, including war plans or enemies' nuclear capabilities, and show it to any non-enemy he likes, as long as he does it for free. He can show our plans for attacking Iran to a writer and a publisher and his staff, all of whom lack security clearances. He can show “a representative of his political action committee who did not possess a security clearance a classified map related to a military operation” . . . as long as he was just trying to impress the guy, rather than collect cash from him.

Abernathy’s piece, in short, is one of the dumbest op-eds I have read in months. But wait. There’s another dumb one to be discussed a little later.

The Critics of the Indictment Are the Ones Who Are Applying a Double Standard

Hopefully, from the preceding section, you have an idea that the material Trump stole is critically sensitive information. But, we are told by Very Serious People, DOJ ought not prosecute him because Hillary. It would be a Double Standard, you see.

Not only do I disagree, but I maintain that in fact, the only double standard here is the one applied by the folks themselves who are screaming “Double Standard!” at this prosecution.

I tried to explain this in a Twitter thread, so if you like reading such things you can consult that. Here’s the first tweet with the basic thesis:

But I’ll lay it all out here.

Hillary Absolutely Should Have Been Prosecuted

I wrote an awful lot about the Comey standard at the time he announced it in his press conference announcing that the FBI would not be recommending charges against Hillary Clinton. I was decidedly not happy, and as I think about it today, I’m still not.

My basic irritation was twofold: 1) I thought the evidence of Hillary’s bad intent was clear, while Comey seemed to think it was not; and 2) Comey imported extra elements into the statute that do not exist in the statutory language, but which he claimed were inherently part of the standard prosecutors had always used in filing (and rejecting) such cases.

I sympathize and agree with with people who say: Hey, if that’s the standard that DOJ used for Hillary, and the FBI director says it’s the standard DOJ always uses, then that’s the standard that damn well ought to apply to Trump.

Absolutely true!

A Brief Hayekian Digression

It’s worth taking a second to discuss why an evenhanded application of the Rule of Law is so important. I re-read Hayek’s The Road to Serfdom recently and have begun reading his excellent The Constitution of Liberty. Hayek gives a definition of the Rule of Law in the former book, and discusses the concept in greater depth in the latter book. According to Hayek, the Rule of Law is the principle that “government in all its actions is bound by rules fixed and announced beforehand—rules that make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. Thus, within the known rules of the game, the individual is free to pursue his personal ends, certain that the powers of government will not be used deliberately to frustrate his efforts.” Hayek makes it clear that the key principles behind this idea include 1) the principle that the people who write the laws are blind as to the identity of the people to whom the coercive powers of government will apply, and 2) the further principle that citizens must be made aware of the applicable laws, so that the citizen can order their lives around those laws.

The opposite of the Rule of Law, in other words, is the exercise of arbitrary power.

It is a violation of the Rule of Law for the government to try to prosecute you for a statutory violation if your conduct does not violate the terms of the statute. Arguably, if the government has shown a consistent pattern of allowing certain technical violations by some people, it could also be an arguable violation of the Rule of Law to prosecute other people for those same technical violations—especially if the government’s past pattern of non-enforcement has been consistent and well known to people covered by the relevant statute.

With these thoughts in mind, let’s return to the issue of applying the Comey standard to the Trump case.

Back to the Issue of Applying the Comey Standard to Trump

We have no reason to doubt that Jack Smith did in fact apply the notorious Comey standard to Trump. Because Trump easily, easily meets that standard. Easily! And there is no way for Trump to argue that the law was unclear, or that he didn’t understand what the rules were. Trump’s very behavior simply screams his knowledge of the nature of his wrongdoing, as evidenced by his extensive efforts to conceal the nature of his wrongdoing from the government.

Before I dive into the specifics, I will note that David French made these points more succinctly and elegantly in a New York Times op-ed titled “Trump’s Misconduct Was Too Brazen Not to Charge”:

But once the Comey test was articulated, it should be evenly applied. And thus the critical question for the political legitimacy — and not just legal sufficiency — of the indictment is whether there is evidence of intentionality or obstruction in the Trump case that was absent in Clinton’s. (This is the same question that should be asked of the mishandling of classified documents by Joe Biden and Mike Pence.)

After reviewing the indictment, one verdict is indeed quite clear: The Justice Department had little choice but to charge Trump. The evidence of intentional misconduct and comprehensive obstruction of justice is just too strong. Any other decision would place presidents outside the rule of federal law and declare to the American public that its presidents enjoy something akin to a royal privilege. But this is a republic, not a monarchy, and if the Justice Department can prove its claims, then Donald Trump belongs in prison.

French is right, and I’m about to explain why in great detail, as is my wont.

Even Under the Comey Standard that Applied to Hillary, Trump Absolutely Would Be Prosecuted, and Should Be Prosecuted

So let’s look at the details of the Comey standard, by looking at his prepared remarks at the time. Here is the key passage. I will put in bold the language that is the essence of what we might call the “Comey standard” (although he claims it is, and always has been, the consistent DOJ standard):

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.

People can reasonably disagree on the merits as to whether the bolded standard was met in Hillary’s case. Indeed, I do disagree with Comey, and expressed my disagreement the day after Comey gave his remarks. Here’s part of what I said at the time:

I’m still confused about how deliberately setting up a private system for communication, including routinely sending and receiving classified information up to and including top secret information, is not “intent” to move that information from its proper place of custody. I’m also baffled as to when gross negligence was written out of the statute, or how “extremely careless” [the phrase Comey initially used to describe Clinton’s behavior] is different from being grossly negligent [the standard articulated in the statute].

But here’s the thing. It could be argued that the Hillary case was a close call. Me, I don’t think it really was. But reasonable people disagree with me. And any way you slice it, the fact remains that when you compare Hillary’s behavior to Trump’s, it is like the difference between night and day.

To feel this in your bones, it helps to read the Trump indictment, which I encourage the reader to do. If you haven’t, allow me to highlight a couple of passages from the indictment which illustrate this point quite nicely.

Trump Displayed Classified National Defense Documents to People with No Security Clearance Even As He Admitted He Never Declassified One Key Document

You might be wondering: was Trump willy-nilly sharing the classified information he possessed with people not authorized to see it? People without security clearances? You bet he was! And as he did, he talked about how the stuff was still secret and classified:

Not great, Bob! And neither is this fact: Trump obstructed like a mother[expletive deleted]er.

Trump Took One Ham-Handed Step After Another to Hide the Documents from the Feds

So by this point in the piece you know that the documents Trump had were super-secret, and that he was showing them around to random people for the fun of it . . . that seems bad! Right? But what did he really do to try to hide the fact that he had the documents?

Quite a lot, as it turns out:

One of the stories, involving a lawyer the indictment does not name but who the world knows is Evan Corcoran, involves Trump making a plucking motion to suggest that if Corcoran found anything “really bad” Corcoran should just “pluck it out” and presumably get rid of it. In the following passage, Corcoran is “Trump Attorney 1”:

I have prosecuted Mexican Mafia cases, and this is how mob bosses talk. It reminds me of the coded talk Trump and Michael Cohen used back when they were criming together, making reference to "our friend David” when they discussed in code their desire to reimburse illegal campaign finance payments made by AMI CEO David Pecker.

Under the Comey standard, any one of four elements justifies prosecution, and we have three of them in spades: 1) “clearly intentional and willful mishandling of classified information”; 2) “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct”; and 3) “efforts to obstruct justice.” The sheer volume of evidence of these three factors must have seemed like a tidal wave to prosecutors not used to seeing even one tenth of this level of damning evidence. The only factor in the Comey standard we lack (and which I suspect we will never see) is 4) “indications of disloyalty to the United States.” But as discussed above, you don’t have to be involved in “espionage” to have violated section 793(e) of the Espionage Act. And the Comey standard doesn’t require all of four of these elements to justify prosecution. Any one of them will do.

And Trump was dumb enough to give prosecutors a firehose-level torrent of evidence on three of these four factors.

So If You’re Arguing that Hillary Should Have Been Prosecuted But Trump Should Not Be, the Person Using Double Standards Would Be . . . YOU

Add it up. Yes, admittedly, Hillary should have been prosecuted under the statute as written. But under a higher standard allegedly representing DOJ practice over the decades, it was a close call whether she met any of the elements. Reasonable people can disagree over whether that higher “Comey standard” was met in Hillary’s case.

But no reasonable person doubts that Trump meets the Comey standard.

If you think Trump should not be prosecuted, despite the overwhelming evidence of his knowing mishandling of critically important national defense documents—and his efforts to hide those documents, lie about the fact that he possessed them, and obstruct the feds in every possible way—you must be saying that because of the example of Hillary Clinton, no person can ever be prosecuted for mishandling classified documents ever again, regardless of the evidence.

Surely nobody actually believes in such an unreasonable position. Right?

The “You Bumped Me, So I Can I Shoot You” Fallacy

The best argument against my position, and the one that skeptics of this prosecution will raise, is this: Patterico, you’re overcomplicating this. Here’s the simpler argument: even you agree that Hillary should have been prosecuted but wasn’t. So all we’re saying is that Trump should get a pass too. It’s only fair!

Good argument, right?

Wrong.

This argument is based on a common fallacy that is used all the time by political partisans. I think it’s worth taking a moment to identify, name, and describe this fallacy, which I have chosen to call the “You Bumped Me, So I Can Shoot You” fallacy.

Let’s say we’re walking in opposite directions in a crowded place, and you happen to bump into me. So I shoot you. Is my shooting justified?

Obviously not, right? But hear me out: I have an argument in my defense! Namely: You committed an act of violence against me. So I get to commit an act of violence against you. What, you want me to play by “Marquis of Queensbury” rules? (I can’t tell you how many times in my writing career I have seen that phrase invoked—and I have to tell you, the people invoking it don’t tend to be scholars of the 9th Marquess of Queensberry, or the history of the sport of boxing, or, well, anything.)

In my bumping example, the two illegitimate moves I made in my attempted justification of my shooting are easily identified and explained:

• Move #1: Take an opponent’s arguably provocative act and declare it to be intentionally evil; and

• Move #2: Propose a wildly disproportionate response to that act, and justify it by pretending that the “provocation” and the wildly disproportionate response are equivalent. Describing both at the highest level of generality possible (“they are both acts of violence”) is an excellent aid in drawing such false equivalencies.

It is Move #2 that is usually (but not always) the more obviously objectionable, both in general and in this specific discussion. After all, Move #1 can often be seen as justified, especially if there is evidence that the “arguable” provocation was definitely a provocation. In the bumping example, let’s assume that 15 minutes before you bumped me, you and I had argued. All of a sudden your bump looks intentional. And in the case of the Hillary homebrew server, as I have said, I believe the evidence that her actions were illegal is fairly clear: she engaged in an intentional mishandling of classified documents. And thus the government’s decision not to charge her really does look like a provocation aimed at the Rule of Law. This bump seems intentional.

The point is, even if you meant to bump into me, I don’t get to shoot you in response.

And even if Hillary got a pass in an arguably strong case, that doesn’t mean the appropriate response is to give a pass to a guy who waved top secret military attack plans in front of random people, had his valet move boxes around to hide from the government the fact of his possession of national defense information, suggested his lawyers destroy evidence of his crimes, and so forth.

The “You Bumped Me, So I Can Shoot You” Fallacy Makes Up 95% of Republican Discourse These Days

Once you see the “You Bumped Me, So I Can Shoot You” fallacy for what it is, you see it everywhere. It is the central theme of Republican political discourse today.

For example, the conservative reaction to the Trump indictment includes Trump’s explicit promise to weaponize the Department of Justice to go after Joe Biden:

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s re-elected to “go after” President Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Mr. Trump said at his golf club in Bedminster, N.J., on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”

He doesn’t even bother to pretend his proposal is legitimate. He doesn’t phrase his plan as an “investigation” of “serious allegations.” He proposes to use federal prosecutors to “go after” Biden. It is as naked a declaration of unconstitutional authoritarian sentiment as any Trump has uttered, and the fact that he has uttered so many and that we are “used to it” should not blind us to how monstrous his suggestion is.

But it’s not just crazy Donald Trump who says such things. Ron DeSantis, ever eager to demonstrate that he can be just as illiberal as Trump, or worse, has pledged to “break up” and remake the Department of Justice into an organization that wouldn’t dare charge a prominent Republican with mishandling national defense documents on the thin pretext that said Republican is guilty as sin of the charge.

This is the “Joe Biden Bumped Us, So We Can Shoot Joe Biden” version of the “You Bumped Me, So I Can Shoot You” fallacy. Here is the Republican version of this:

• Move #1: Biden used DOJ to go after Trump.

• Move #2: Trump should use DOJ to go after Biden.

Here, the key to the fallacy lies mostly in Move #1: completely mischaracterizing what is happening here. Yes, as I wrote in March in a piece titled “You’re Probably Not Going to Like This Piece,” whenever a politician can file charges against his opponent, we have to be on the alert for the possibility of abuse. And while it’s not really Biden himself bringing these charges, it is nevertheless true that under a strict “unitary executive” theory that all Article II powers are vested in one person (which seems to me to be an accurate reading of the Constitution), Biden is in fact ultimately responsible in theory for the prosecution in the sense that the buck stops at his desk for everything the executive branch does.

All that said, it is just paranoid fantasy to pretend that this case is equivalent to Vladimir Putin bringing false charges against Alexei Navalny. As I said in my March piece, “I don’t believe Joe Biden is planning to prosecute Donald Trump to remove him as a threat. I think Merrick Garland has largely delegated the decision to Special Counsel Jack Smith, who, by all accounts, will make his decision according to the law and the facts.” Moreover, as I also said then, “[t]here are many differences between political prosecutions here and those in authoritarian regimes like China, Russia, or Saudi Arabia. Our constitutional guarantees of due process for defendants are among the most robust in the world, and the independence of our judiciary is an example for all nations.” It’s quite a contrast to the regimes of a Putin or an MBS or a Xi or a Kim.

In short, Joe Biden is not the reason we’re here. Donald Trump is.

And imagining Biden being as blatant as Trump helps drive this point home.

Ask yourself this: how would you feel if, after Jack Smith gave his short statement about the indictment, Biden followed it up with a speech declaring that he had ordered Smith to seek the indictment, because it was high time that a president personally see to it that evil men like Trump get what’s coming to them. At which point Biden led the crowd in a chant of “lock him up.”

I think everyone would be appalled. And Trump partisans would be screaming from the rooftops. And for once, they would be right.

But that’s not what’s actually happening. It’s Donald Trump, not Joe Biden, who engages in that kind of behavior.

Of course, the more hyper-cynical and wild-eyed partisans will tell you that’s exactly what’s going on, and I’m naive for failing to recognize it. They will tell you that Trump is just the guy who’s willing to say it out loud. That’s a lovely sentiment and I’m sure the people who say it believe it—but they also don’t care that this opinion of theirs is totally lacking in evidence to support it. People who say things like that just don’t care about things like “evidence.” Want proof? If you want to simulate the feeling of banging your head repeatedly against a brick wall, I encourage you to wade into the muck of Trumpistan social media and try having a rational interchange with someone who says things like this. Start by asking them what evidence it would take to prove to them that the indictment is free of Biden’s influence. Or, conversely, how they know that the indictment is a product of Biden’s influence. I predict you will become very frustrated very quickly. This is just not a discussion that is going to be guided by facts, evidence, and flawless logic on the part of the Trumpists, to put it mildly.

But these partisan Republicans, by characterizing the Trump indictment as a naked attempt by the current president to take out his rival, can then justify their Move #2: a wildly disproportionate response to the legitimate charges against Trump, by explicitly pledging to weaponize the federal criminal justice apparatus to lash out at Joe Biden. This is characterized as a “reaction” . . . when in fact, anyone who watched the “lock her up” chants at Trump rallies knows that Trumpists’ fantasies about imprisoning Trump’s political opponents because they are his political opponents are not a “reaction” to anything; it’s just authoritarians reveling in their authoritarian philosophy.

Like so much of what Republicans do nowadays in the name of culture war issues, the people looking to overhaul DOJ because of the Trump indictment are just looking for an excuse to behave badly, and to blame someone on the left for it.

In the end, Trump could shoot the Rule of Law on Fifth Avenue and his supporters would say the shooting was justified, because the Rule of Law bumped him first.

For God’s Sake, No, the Next President Should Not Pardon Trump — and Gerald Ford Ought Not Have Pardoned Nixon

And now we come to possibly the most aggravating portion of our discussion: the claims that For the Good of the Country, Joe Biden should pardon Trump. Or, following the exhortations of Vivek Ramasmarmy, that any GOP candidate ought to pledge to pardon him.

We’re told it will spare us such terrible angst and misery. And the thing is, it’s not just idiots who say this.

Oh, dear.

I think this all flows from a failure to understand and apply first principles. To explain why, I have to discuss yet another ridiculous Washington Post op-ed.